then the -- we don't really understand why the zoning administrator hasn't extended this beyond november 26th. it is virtually impossible for the building permit, which has to be issued by then, to issue. even if the planning department was to tomorrow send out a 311 notification, then it's 30 days if no one files a dr and that would mean the very next day the planning department would have to issue a building permit and i have never seen the building department do and this a understand that they have more review do. we have heard that the appellants will be filing a dr and obviously we're going to go beyond the 30 days that starts tomorrow, if the 311 is sent out tomorrow. i simply don't understand why the zoning administrator has not extended but we'll hear from

him. missing the november 26th deadline means that my client those seek another variance and that variance we believe to be appealed back to you. and we're not sure the zoning administrator would issue it this zoning administrator is different from the last one and this zoning administrator state he had may not issue a rear yard variance again. even if issued again, the neighbors would appeal it. i have spoken here a number of times about the doctrine of vested rights in which courts have told administrative bodies including many years ago your commission that once a permit is issued and it's issued validly and a person spendion substantial money and time and reliance on, it it's a vested right that the city cannot take away. and i believe that vested right exists here. and that it's not appropriate to take it away by doing

effectively denying the variance by not allowing an extension, when an extension will be necessary. again, the finding that others in the neighborhood have a property right, have parking, and that is appropriate to give to this owner was never appealed. this appellant despite being part of a neighborhood group having brought two appeals already, and this one, despite being a like party to file a discretionary review is now requesting that there be no extension and it seems to me something out of a cavka novell or perhaps "catch 22." the merits of garage variance is

not before you. there is currently before you a neighbor appeal that has caused a delay. he obviously found that miclient wasn't the majority source of the delay. i don't think the facts have changed. my client has not been the major source of delay. if you would like, i will talk to you about the document you that see in our overhead, if you turn it on. that indicates what delays occurred and how long and who caused them. my client may have been the cause of minor, small ones. the tenant will say or perhaps the zoning administrator that perhaps it's not policy to

require a number of parking spaces for group housing and may say that the parking wasn't allowed for group housing. but for a three-unit building, but the variance indicates that it's not the use that is triggering the use of apartments versus housing, group housing that is triggering the finding that there should be parking. he has said in the 2005 that the parking right for this lot, not for this use, is a substantial property right possessed by others on the property. i'm going to hand it over to mr. nale and then to his other attorney. thank you. >> hello. my name is david nale and i am the owner of the property at 124-128 fillmore. thank you for your consideration in hearing about our proposed garage.

i purchased the three-story property in 2004, when it was rented by individuals who then found roommates through roommate services or otherwise. the units were not occupied by families related by blood or friendship. the property now operates in a similar manner, but approved by the city and called in the planning code "group housing." that means that tenants still rent individual rooms, but they have their own lease and they are no longer tied to the lease of a main [ta-epbts/]. tenant and as a result of that, all tenants are protected by rent control because they stay more than 32 days. the tenants have indefinite month-to-month leases. so they rent as along as they want. i have been working diligently to obtain permission to build a three-car stacked elevator garage behind the property. while some tenants use public

transit, some have cars. i believe that most of the delays for the garage application have first been due to delays from neighbor appeals. and then second to a lesser degree from city delays. i do not believe that the delays by the city have been caused by maliciousness. third, i have also been responsible for short delays, most of those due to my coping with hiv side effects, which often slow me down, but i have still tried to keep up. and be as responsible as possible to keep up with the schedule. scott sanchez' august 28th letter of determination, which is being appealed now, he detailed the other two extensions that had been granted for this variance. he outlined that the first extension was due to time elapsed as the result of neighbors' appeals of the original garage permit.

and he also oust outlined that the second extension was as a result of the delays of discretionary review hearing that was requested by neighbors for group housing performance. now we're delayed by another neighbor appeal. the planning department stopped work on the gulf stream as soon as the neighbor filed her appeal, essentially ensuring that the variance deadline would be impossible to meet. it is unfair to allow the neighbor's appeal of the zoning administrator's extension of the variance deadline to kill the project unilaterally without regard for the merits of the project. i believe this sets a bad precedent. i urge you to extend the variance deadline, to accommodate city delays and neighbor appeals. thank you for your consideration. >> before i introduce the attorney two more points. first of all the variance itself says that it may be extended if there is a delay.

"by appeal of the issuance of a permit." and then it refers to a performance as being the issuance of a necessary building permit. and refers to the appeal of such as one grounds by which the variance decision can be extended. the other thing i would like to point out is that we have downtown buildings that build parking according to requirements ten years ago when approved that they have parking. today downtown buildings don't require parking. those buildings have had their building permits extended. they have had their variance and conditional use extended. we don't tell them that they have to redo -- it's not

required. let's me introduce julia. >> good evening you'll jay cavernans and i'm here to address the [stka-blts/] issues and i answer any questions. the applicable laws of the americans with disabilities act, the fair housing act and this is mr. nale's dwelling. and there are several aspects of his permit and variance that relate to disability, but i'm only addressing the variance this evening. haze previously made san francisco aware of his [stka-blts/], and has requested accommodations, but we're being explicit in the filings this evening that this is a request for an accommodation under the law. seven years ago the variance

was approved. five years ago a permit was approved and mr. gladstone spoke the reasons unrelated to the merits of garage. now -- since then the city has become aware of his disability, but they are treating his less favorable rather than taking into account his disability and that run as foul of the federal and state civil rights laws. >> mr. sanchez. >> scott sanchez, the giants have won and congratulations to them on game 169 world series. [ applause ] >> i think that is the only applause i have gotten here. i hope i don't make it more difficult to understand for the commission. just going through the fact there was a v. from 1991-92

that authorized the garage at the rear. a one-car garage and it was issued and i don't think a building permit was filed. i think it was a previous owner of the building, but that was never invoked. i just happened to find that out today dooing additional research. so the process that we're in now began in 2005. when a variance application was filed in march to allow the garage at the rear. a building permit was filed in june of that year, section 311 neighborhood notify case was done on the garage and building permit. there was no discretionary review filed on that application. there was a hearing and the zoning administrator granted the variance and that was dated november of 2005, seven years ago. almost to the date. the building permit was subsequently issued in may of 2007. around that time the planning department received a complaint about group housing operating illegally at the subject

property. the matter of the building permit for the garage was appealed to this board, i think over the course of a year. we finally came back and the board denied that permit because of the outstanding complaint. i think the board took action in 2008 to deny that building permit application. then the project sponsor went through the process over several years of legalizing the group housing use. there was a building permit to do so. that was appealed under dr, under discretionary review to the planning commission and subsequently issued. that was a delay to the variance. i think they filed another permit to the garage in 2008, but we held off on that in the all questions of legality for the property and for the use were resolved. now we're at the stage that we can advance that permit. i think this is very unique situation where we have granted so many extensions to the project. we have taken, i think, everything that we could possibly take into account,

into account in making those extensions. the most recent one was for a little more than 60 days and that was taking into account time under which the apellant, the project sponsor, because the appellant -- the project sponsor has appealed the lod that i issued was well. the project argued against times and materials that the department assessed. any time and materials that are accrued investigating and abating a complaint are tagged on to the complaint. i think we were taken to small claims court and we prevailed and that matter resolved. we included the time that the project sponsor spent fightphyting the city on paying the appropriate fees. we included that and i felt that was the much that we could do. what was somewhat troubling for me in may of this year the project sponsor

submitted another permit for the garage while there was one on file from 2008. the one there earlier this year did not comply with the terms of the variance decision letter. it was larger than authorized. that was pointed out to them and they can withdrew that application wan we're moving forward with the 2008 building permit that does match what was authorized in the variance decision letter. we have suspended our work on the application and i didn't think it was appropriate to send the 311 notification out when it's before this board. so i didn't feel that was propriety to second that out to notice and have a dr filed and potential hearing when the board may exide that the v. is not valid and would need to file a new variance application and go through that process. so that is where we're today. i just wanted to make that clear to the board and i think it is a complicated history and i think really the question fort board is whether or not

this variance is still valid given the arguments that are made by all the parties. in regards to the zoning -- the zoning has changed. that's been going on for quite some time and the market octavia area was adopted and it's not located in an rto zoning district. which that and also the fact it's group housing means that there is no parking requirements. so under the previous zoning it was rh3, the variance decision letter considered there were three dwelling unitss in the building and that the variance to allow the parking at the rear, while not required parking, there is no requirement for them to add parking. it did go to satisfy that requirement. the parking provide now would still comply with the code. while there is no requirement that they have parking for a new group housing use, there is actually in this district, we get rid of the parking minmuseum and we have parking maximums. so they could have

one parking space for each three bedrooms and i think there are 15 bedrooms in the proposal [-rbts/] so they could actually have to up five parking spaces. so this would still comply with the zoning. the parking would still comply with the zoning, even though the zoning has changed and i would agree with the appellant, the neighbors, i think it's a very good point that some of the facts have changed. it's no longer dwellings. it's now group housing. but the fact remains that does the board feel that the variance is still valid? or do they need to come back? i would request that if the board finds that the variance is still valid, that the board also grant sufficient time for them to complete all of the processes that may lie before them. as i is he, we would have a section 311 neighborhood notification that could be taken further on. so it could be eight months to a year

additional extension to allow completion of that process. but i just wanted to present that information to the board. i'm aof valuable for questions. >> the variance application appears to be there is about two years between the granting of that v. and variance and when the group housing application was submitted. is that correct? >> let me find the dates. it was submitted in 2009. >> four years then? >> the complaint for group housing wasn't made until 2007. and at the time it was appealed

to this board. so the board took action on the permit to allow the garage and i think in 2008, so there was more than a year between the board revoking the permit for the garage and the permit filed to legalize the group housing units. >> okay. >> >> there has to be one year in between filing of a permit for something that was just revoked. but this was a permit to legalize the use. they could have filed that in 2007 when the complaint was first raised. >> commissioner lazarus has a question. >> the reason for the deadline? >> so i estimated the amount of time that was spent and i hate to say wasted but that was spent when the appellant, when the property owner, the project

sponsor was arguing with the department over fees that we assessed on the permit for the group housing use, to legalize the group housing use. we were taken to small claims court, but we did win on that. so at that time, as a delay that counted towards them on the variance decision letter. so i think we have, as i said, taken everything that we possibly could into consideration in giving additional time beyond the three years that is typically allowed for the variance. >> we can take public comment. are there any members of the public that wish to speak on this item? please step forward. >> my name is phillip sears and i live across the street from david nale's property and i'm here to oppose the

extension of the variance. i am a building contractor and i have been watching david nale renovate his property since he purchased it in 2004. he applied for this permit for the garage in 2005, but the records show he has pulled a number of building permits for repairs and additions to the interior of his building. he added a number of bathrooms and was creating what is now the sro, but at the time was a tourist hotel. during '05-06-07 and i think even during '08, there were numerous building applications. so the time that he could have been spending on building the garage, he was actually i think illegal le preparing and building these units inside of his flat. he even had an open house for

the neighbors back in 2006 or '07 where he was showing off what he had done to one of the flats by creating five separate units he was renting out with one kitchen. so my feeling is that he certainly had plenty of time to move forward with the project and he did not. when we went to the board of appeals in 2008, or 2007-2008, for the tourist hotel issue, larry badner, then the zoning commissioner at the time, he stated at that hear had he known that this was operating illegally as a tourist hotel, he never would have granted the original permit for the garage.

and i think that speaks volumes to what is going on here. the attorneys tried to make it sound like they have really been fighting the neighbors all this time with all of these appeals, but basically it's because of the original direction that david nale took the building from three -unit building to a tourist hotel that created most of these issues and timeline problems. thank you very much. >> thank you. next speaker. please. >> good evening, distinguished members of the board of appeals.

my name is lakreishera row and i have owned property on germainia street for 28 years and i would like to vise my option of extending the variance -- you have heard from all of the people ho have spoken before me about the timelines. and the variances and meeting this and not meeting that. as far as i'm concerned those are bureau catic acrobaticks that jus bureaucratic acrobatics of getting a building many mace that should not be there. the reason i'm here is that because in my opinion, this project located on germainia street behind the building on the corner of fillmore is out of character with the

neighborhood. in 2006 the san francisco planning department contracted for an historic resource survey of approximately 1500 buildings within the market/octavia plan. buildings on our street and surrounding areas were photographed and architectural details identified and described in detail. the planning department's survey activities are reported to the state office of historic preservation through the federal certified local government program and conform to state and federal standards. the survey is an indication of

what is not -- what is or what is not an historic resource. i doubt if the proposed building would be circumstantial considered an historical resource and therefore out of character with the neighborhood. introducing an elevator garage is hardly in keeping with the historic character of this neighborhood. of 100-year-old victorian and could be a potential fire hazard on our densely built street. please do not allow this project to move forward. thank you for your time and consideration. >> thank you, next speaker, please. >> yes, good evening. my name is steve lowinger. i am the owner of 70-76

germainia, which is a four-unit victorian apartment building directly across from the entrance to the proposed garage. and i didn't want to repeat a lot of what has already been said, but i did want to stress the point that the nature of the garage -- i don't know if it was stressed enough, but it's a stacked three-car elevator garage. and germainia is a very narrow street. narrow alley street, historic, you know? and i have some major safety concerns for constructing this type of garage in this location. you know, personally, i am not opposed to a garage, but a one-car garage seems reasonable, but this three-car stacked garage seems like it

would be very hazardous to the neighborhood. and it's of great concern to me. so that is really what i wanted to say. thank you. >> thank you. next speaker, please. >> my name is kathleen stoddard and have i lived in the neighborhood for years and i'm speaking in opposition to the variance. i just wanted this evening to question the curb cut that david nale has. i question whether it's legal or it's not legal to cut a curb and i don't see the initials mta, those initials there on

the curb. and can someone rent -- put up a no-parking sign and charge rent to park cars? to park your car there? that is what i wanted to speak on. thank you. >> thank you, next speaker, please. >> hi. my my name is ellen swain and i live at 124 fillmore and i'm speaking in favor of the extending the variance. i am an attorney, not licensed currently in the state of california. i'm licensed on east coast in new hampshire and vermont, but i can come to fillmore house to study for the california bar examination. i have not gotten my results back. so i will tell you if it's good luck or not. what i have found since i have been there, it's a loverly place to live and it's a place i would like to continue to live n part because there are other professionals who live there. when i hear the comments about

it being a hotel, i understand there has been some historic situations where that might have been the case, but that is certainly not the environment in the house. it does have professionals such as myself that do have work in the city. we have to go back and forth from marin and from the east bay. that i know in my situation, i also have a car, which is a point i want to address to you in a moment. to the extent the assumption it's transitory housing, that is slipper not my experience. i think it certainly going in alignment with the way that manufacture of us work as professionals in. i also work in a co-working space and environment. in terms of car parking, there is a safety issue i would like to address with you. i do own a car and it's parked on the street and as you know in that neighbod